As Judge Brett Kavanaugh is confirmed to the Supreme Court, people are already penciling in this court as a conservative court, poised to overturn nearly every liberal or moderate ruling. But just as you think you know the Supreme Court, the concept of judicial independence throws a monkey wrench into the best laid plans of attorneys, interest groups, politicians and pundits.
Take the case of Trump’s nominee Neil Gorsuch. Since he came onto the court, he’s been very willing to let a series of lower court rulings on liberal issues stand. Though liberals decried his position on the Peruta v. California case (the right of carrying a gun beyond one’s home for self-protection, which was turned down by the Supreme Court), he’s sided with the court liberals in allowing Maryland to ban semiautomatic rifles and magazines with large capacities (Kolbe v. Hogan) and Florida’s ban on the open carry in public law (Norman v. Florida). In fact, Gorsuch has become so liberal that his votes have earned the ire of Trump, as well as conservatives.
By the way, I noted in a column that this was likely to happen back in 2017 when Gorsuch was nominated. That’s why I wasn’t surprised when Gorsuch’s voting record was considered more liberal than Anthony Kennedy’s, the swing vote.
Most people think Antonin Scalia was a conservative’s conservative, the most right wing justice in history. That’s not supported by the evidence. Perhaps that was the case early on, but over the years, Scalia got more libertarian than conservative, with a voting record less conservative than Clarence Thomas or Samuel Alito.
Other Ronald Reagan’s picks, like Sandra Day O’Connor and Anthony Kennedy were also firmly considered centrists, rather than fire-breathing conservatives.
Our college students learn that perhaps the most liberal court in history was Earl Warren’s court. Many are surprised to learn that Chief Justice Warren was nominated by Republican President Dwight D. Eisenhower, and was also a former GOP California Governor and Vice-Presidential nominee on the Thomas Dewey Presidential ticket in 1948. William Brennan, another Eisenhower pick, went on to be one of the most liberal Supreme Court justices in history.
It’s a similar story with Nixon nominees. Chief Justice Warren Burger was fairly moderate, as was Lewis Powell. William Rehnquist was surely conservative, but certainly not Harry Blackmun, who wrote the Roe v. Wade decision and was clearly a member of the court’s left wing for a long time. Gerald Ford’s nominee John Paul Stevens was liked by liberals as well. Chief Justice John Roberts may have been nominated by George W. Bush, and generally votes conservative, but he was the key vote in upholding the Affordable Care Act (Obamacare).
By now, you’ve come to the conclusion that the GOP just can’t pick their judges. But Democrats like Kennedy picked football star Byron “Whizzer” White, who became known as a conservative judge. Obama nominees Elena Kagan and Sonia Sotomayor have been known to side with conservatives on some issues. And Clinton pick Stephen Breyer is now considered the new swing judge on a number of issues.
In fact, former Supreme Court Justice Felix Frankfurter once admitted “The only check on us is our own self-restraint.”
Who knows how Brett Kavanaugh’s career will turn out. But if history is any guide, neither side will be able to count his or anyone else’s votes before they’ve been cast on the Supreme Court.